Hays v. Windsor

Plaintiff brings the action to recover the possession of certain grain of which he alleges ownership and right of possession. The cause was tried by the court without a jury and defendants had judgment, from which and from the order denying a new trial plaintiff appeals.

It was alleged in the separate answers of the defendants that defendant Ewell Windsor and Stirling P. Windsor, his brother, deceased husband of defendant Alice Windsor, were copartners and tenants of plaintiff under a farming lease for the cropping season 1895-96, whereby plaintiff was to receive one-half of the grain raised as compensation for the use and occupation of plaintiff’s land; that in March, 1896, Stirling died and defendant Alice became administratrix of his estate, which is still unsettled, but to the whole of which she is entitled, it amounting to less than fifteen hundred dollars in value; that said copartnership was indebted to sundry persons beyond its assets,, and that the crop in question was the only property of any considerable value owned by the partners; that defendant Ewell Windsor was the sole surviving partner and as such entitled to settle up the business of the copartnership; that in May, 1896, plaintiff falsely and fraudulently, and with the intention of deceiving and defrauding these defendants, represented to them that the property in the complaint described was about to be attached by creditors of defendants; that he (plaintiff) had consulted with an attorney in the interest of defendants, and had been advised by him that it would be to the advantage of these defendants and each of them if they would execute a bill of sale convejdng said grain, and that by so doing their property would be protected from such threatened attachment; that if such bill of sale should be executed and delivered by these defendants to plaintiff, no one need know anything about it unless some creditor should attach said property; that the plaintiff is the father of the defendant Alice Windsor, and as such these defendants relied upon him and believed the aforesaid false and fraudulent representations, and in consequence thereof executed to the plaintiff herein a bill of sale of said goods and chattels, and plaintiff bases his claim thereto on said bill

Defendants prayed for a return of the property, or, if delivery could not be made, that they have judgment for the value. The action was commenced on July 27, 1896, on which day part of the grain was in warehouse, part in sacks in the field, and part being harvested. The sheriff took possession under the writ, and by agreement defendants continued harvesting the grain and the sheriff took actual possession as fast as harvested. He testified: “On the 16th of November, 1896, the parties entered into a stipulation authorizing me to sell the grain, and turn over to the clerk of this court all the proceeds of the sale to abide the termination of this action,” amounting in all to thirteen hundred and fifty-seven dollars and thirty-four cents. The court found the foregoing allegations of the separate answers to be true. The court also found that plaintiff was never in possession of the property, and that at the commencement of the action defendant Ewell Windsor was in possession and so remained until possession was taken by the sheriff in this action; also that plaintiff did not demand possession of the property before commencement of the action or at any other time, nor did defendants refuse to deliver possession.

The bill of sale reads as follows:

“To whom it may concern:

“That we, the undersigned, have for the sum of five hundred dollars this day paid to us sold to Wm. Hays all our interest in the growing crop on the (land described), April 15, 1896.

“EWELL WINDSOR.

“ALICE WINDSOR.”

1. There is no pretense that there was any consideration for the sale, other than it appears that plaintiff was surety on a

No consideration was paid for the bill of sale, and if there was fraudulent intent in making it, shared in by all the parties thereto, they would be in pari delicto, and what was said in Ager v. Duncan, 50 Cal. 325 , would apply: “In such cases it is immaterial by which of the parties the fraudulent nature of the contract is disclosed to the court. As soon as the fraud is made to appear by either of the parties, the court will refuse to interfere and leave them as they were. In other words it will not enforce a contract founded on the mutual turpitude of the parties to it. And for the same reason, if the contract has been executed, the court will not aid either party to escape its consequences.”

If the facts warrant the conclusion that defendants had no fraudulent intention of defeating payment to their creditors, but really intended by the transaction to make payment more certain, then the fraud and deception was on the part of plaintiff alone, and the rule laid down in Vitoreno v. Corea, 92 Cal. 69 , would apply. It was there held that two persons may concur in an illegal act without being deemed in pcwi delicto. In the ease cited the court said: “In this case the defendant alone was guilty, of the fraud. He cannot avail himself of his own fraud as a defense. Tor no man shall set up his own iniquity as a defense, any more than as a cause of action.’ ” (Quoting Lord Mansfield in Montefiori v. Montefiori, 1 W. Black. 364.)

Whether, therefore, plaintiff and defendants were equally guilty of fraudulent intent, or whether defendants were innocent of such intent and plaintiff alone was guilty, plaintiff cannot recover. (See the subject discussed in Bump on Fraudulent Conveyances, secs. 443-44, and eases there cited.)

The judgment is modified by striking therefrom the items of damages, and in other respects it is affirmed, as is also the order, each party to pay one-half of the costs of appeal.